Citation Nr: 1142294
Decision Date: 11/15/11 Archive Date: 11/30/11
DOCKET NO. 09-41 997 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a low back disorder.
2. Entitlement to an increased (compensable) disability rating for bilateral hearing loss.
REPRESENTATION
Veteran (Appellant) represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Carole Kammel, Counsel
INTRODUCTION
The Veteran served on active military duty from December 1959 to February 1964.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. By that rating action, the RO, in pertinent part, continued a noncompensable disability rating to the service-connected bilateral hearing loss. The Veteran appealed the RO's August 2008 rating action to the Board.
This appeal also stems from a July 2009 rating action issued by the above-cited RO. By that ration action, the RO found that new and material evidence had not been received to reopen a previously denied claim for service connection for a low back disorder. The Veteran appealed the RO's July 2009 rating action to the Board.
In June 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A copy of the hearing transcript is of record. After the hearing, the Veteran submitted additional evidence in support of the appeal along with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2011).
The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for anxiety, claimed as secondary to tinnitus, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.
The reopened claim of entitlement to service connection for a low back disability and entitlement to an increased compensable disability rating for service-connected bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if additional action is required on his part.
FINDINGS OF FACT
1. The RO last finally denied the Veteran's claim for service connection for a low back disability in a November 2006 unappealed rating decision.
2. Evidence submitted since the November 2006 rating decision includes information pertaining to a fact necessary to substantiate the claim (i.e., evidence of a nexus between the Veteran's current low back disability and his period of active military service), the absence of which was the basis of the previous denial, and raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The November 2006 rating decision, wherein the RO denied service connection for a low back disorder, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.105(a) (2011).
2. Evidence received since the November 2006 rating decision denying service connection for residuals of a low back disorder is new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011).
The VCAA is not applicable where further assistance would not aid a veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision with regards to the Veteran's request to reopen his previously denied claim for service connection for a low back disorder, further assistance is unnecessary to aid the Veteran in substantiating the aspects of this claim decided in this decision.
II. Merits Analysis
The Veteran seeks to reopen a previously denied claim for service connection for a low back disorder. He maintains that his current low back disorder is the result of an in-service jeep accident; thus, he argues that service connection is warranted.
Having carefully considered the evidence in light of the applicable law, the Board finds that new and material evidence has been submitted, and the petition to reopen the Veteran's previously denied claim for service connection for a low back disorder will be granted.
By a September 1994 rating action, the RO denied service connection for a low back disorder, based on the absence of competent medical evidence linking the above-cited disorder to the Veteran's period of active military service. A notice of disagreement was not received within one year of notification of this rating decision; thus it became "final" under 38 U.S.C.A. § 7105(c).
In August 2006, the RO received the Veteran's petition to reopen his previously denied claim for service connection for a low back disorder. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in August 2006). By a November 2006 rating action, the RO found that new and material evidence had not been received to reopen a previously denied claim for service connection for a low back disorder, based on the absence of competent medical evidence linking the above-cited disorder to the Veteran's period of active military service. A timely substantive appeal was not received within one year of notification of the November 2006 rating decision or within 60 days of the May 2008 statement of the case (SOC), whichever is later, thus rendering it "final" under 38 U.S.C.A. § 7105(c)(West 2002).
Once a denial of a claim of service connection has become final, it cannot subsequently be reopened unless new and material evidence has been presented. 38 U.S.C.A. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011).
Whether new and material evidence is submitted is a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the previously denied claim for service connection for a right shoulder disorder. The evidence received subsequent to the November 2006 rating action is presumed credible for the purposes of reopening the Veteran's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).
In May 2009, the RO received the Veteran's petition to reopen his previously denied claim for service connection for a low back disorder. (See VA Form 9, dated and signed by the Veteran in May 2009).
Evidence received since the final November 2006 rating decision includes private and VA examination and treatment records, dating from December 1985 to January 2011, an October 2009 statement, prepared by R. Y., and statements and hearing testimony of the Veteran.
Private treatment records, dated in April and August 1986, reflect that the Veteran experienced back pain after he ran to greet someone and lifted a heavy object, respectively. The Veteran was diagnosed with acute lumbosacral strain and acute lumbosacral strain with perhaps some early radiculopathy, respectively. In April 1986, the Veteran denied having sustained any previous serious injury to his back.
A March 2008 VA treatment note reflects that the Veteran reported having experienced a progressive worsening of his back pain ever since he had been involved in an in-service jeep accident. The examining VA healthcare provider entered an assessment of "back pain--which could as likely as not be related to "jeep going over an cliff--mentioned above." (See VA treatment report, dated in early March 2008).
An April 2008 VA examiner opined that the Veteran's current degenerative disc disease of the lumbar spine was less likely related to the in-service treatment for abrasions of the right and left legs and bruised rectum that he had sustained as a result of a jeep accident. The VA examiner reasoned that there was no evidence of any continuing problem or chronicity of any back problem after the Veteran was discharged from military service until August 1986, when he developed a back problem after he had lifted a heavy object and experienced sudden discomfort and pain in his low back that radiated into his left lower extremity. The VA examiner attributed the Veteran's degenerative disease of the lumbosacral spine to age-related degenerative [changes] or the wear-and-tear process.
In an October 2009 statement, R. Y., indicated that he was the driver of the jeep in which the Veteran was a passenger and that it crashed and went over a cliff during military service in the 1960's.
During the June 2011 hearing, the Veteran testified that his low back disorder was the result of an in-service jeep accident. He maintained that after service discharge, he informed every physician, private or VA, of the above-cited in-service jeep accident and resulting injury to his low back. He testified that the April 2008 VA examination was inadequate because the examiner was an anesthesiologist, as opposed to an orthopedist. (Transcript (T.) at page (pg.) 15)).
The above-cited evidence is new because it was not of record at the time of the RO's final November 2006 rating decision. Aside from the April 2008 VA examiner's negative nexus opinion, the remainder of the evidence is material because it suggests that the Veteran's current low back disorder may be related to his in-service jeep accident. The above-cited evidence, notably the October 2008 VA healthcare provider's impression, relates to the basis of the RO's prior November 2006 denial: the absence of evidence establishing a link between the Veteran's current low back disorder and his in-service jeep accident.
The evidence received since the final November 2006 rating action is insufficient to serve as a basis for granting service connection because it is equivocal and does not contain any rationale or consideration of the entire record. It does, however, satisfy the low threshold that would trigger VA's duty to get an examination, and as such raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2011); see 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). New and material evidence having been received, the claim for service connection for a low back disorder is reopened.
ORDER
New and material evidence having been received, the claim for service connection for a back disorder is reopened; to this extent only, the appeal is granted.
REMAND
The Board finds that additional evidentiary development is necessary prior to further appellate review of the claims of entitlement to service connection for a low back disorder and entitlement to an increased (compensable) disability rating for bilateral hearing loss. Specifically, VA orthopedic and audiological examinations to determine the etiology of the Veteran's low back disorder and current severity of his bilateral hearing loss, respectively, should be obtained.
As noted in the preceding analysis, an October 2008 VA healthcare provider's impression crossed the low threshold that triggered VA's duty to provide the Veteran with an examination in conjunction with his reopened claim. VA examined the Veteran in April 2008 to determine the etiology of his low back pathology. This examination, however, was performed by a VA anesthesiologist. Thus, prior to further appellate review of the claim for service connection for a low back disorder, the Board finds that the Veteran should be afforded a new examination by an appropriate examiner to determine the etiology of his low back disorder.
Finally, while the Veteran's STRs are of record and show that he received treatment for an abrasion of the right and left legs and bruised rectum after he was involved in a jeep-related accident in December 1960, federal records from the Okinawa, Japan Provost Marshall Office that might officially document the above-cited jeep accident are unavailable. (See November 2010 Memorandum of Unavailability of Records). In a December 2010 electronic mail to L J. B. 1st Lt., Public Affairs Officer, 3rd Marine Division and Media Officer, III Marine Expeditionary Force and Marine Corps Bases, Japan, the Veteran's representative inquired whether a military police report of the Veteran's in-service jeep accident would still be of record. In response, 1st Lt., L. J. B. noted that although military records dating back to 1960 were no longer kept at Okinawa, the requested records might be available at the following website: https://vetrecs.archives.gove/VeteranRequest/home.asp. A visit to this website reflects that it is operated by the National Archives and Records Administration (NARA). It does not appear that a request for any records pertaining to the Veteran's in-service jeep accident have been made from the above-cited government records depository. Thus, the RO should attempt to contact NARA for the above-cited records on remand.
In addition, the Veteran seeks an increased (compensable) rating for his service-connected bilateral hearing loss. He contends that since VA last examined him for his hearing loss disability in November 2010, his hearing loss has increased in severity to the point that it required the issuance of hearing aids. (T. at pg. 5). VA audiological examinations were performed in June 2003 and November 2010. There is no indication that a controlled speech discrimination test (Maryland CNC) was administered during the November 2010 VA audiological examination. Thus, the results of this test are inadequate for VA rating purposes. See 38 C.F.R. § 4.85 (2011). Therefore, the Board finds that the Veteran should be afforded a current VA audiological examination to determine the current severity of his service-connected bilateral hearing loss. The examination must be in compliance with 38 C.F.R. § 4.85(a).
In addition, the Veteran testified that he underwent an audiological evaluation by a private audiologist, Mark Ward, on June 21, 2008. The result of this audiogram are not record. As the results from the above-cited private audiological evaluation might contain evidence showing an increase in severity of the Veteran's service-connected bilateral hearing loss during the appeal period, they are relevant to the increased evaluation claim. VA has an obligation under the VCAA to associate all relevant records from private healthcare providers with the claims file of a Veteran. 38 C.F.R. § 3.159 (2011). Thus, on remand, the RO should attempt to secure copies of the above-cited private audiological evaluation results.
Accordingly, the case is REMANDED to the RO/AMC for the following action:
1. The AMC/RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who have treated him for his low back and hearing loss disability since service discharge and are not previously of record. Of particular interest are treatment records pertaining to an audiological evaluation performed on June 21, 2008 by Mark Ward. Records should be obtained based on the information provided, and any records obtained must be associated with the claims file. Whether or not the Veteran responds, updated VA treatment records should be obtained.
All attempts to procure records should be documented in the claims file. If the RO/AMC cannot obtain records identified by the Veteran, notations to that effect should be inserted in the claims file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.
2. Contact the NARA and request all records pertaining to the jeep-related accident the Veteran was involved in, dated in December 1960. Any forthcoming records must be associated with the claims file. All efforts to obtain these records should be documented in the claims file. If these records are unavailable, the Veteran should be informed of their unavailability and of the efforts made to obtain them.
3. Following completion of the above, schedule the Veteran for a VA Compensation and Pension examination with an appropriately qualified specialist to obtain an opinion as to whether any current low back disorder is related to an in-service jeep accident. The following considerations will govern the examination:
(a) The examiner should review the claims file and note such review in his or her examination report. A complete history should be obtained from the Veteran and be considered by the examiner. The examiner must provide an opinion as to whether any currently diagnosed low back disorder is the result of the Veteran's reported in-service jeep accident.
In formulating the above-requested opinion, the examiner's attention is called to the following service and post-service evidence:
(i) A December 1960 service treatment record (STR) reflecting that the Veteran was diagnosed with abrasions of the right and left legs and bruised rectum. It was noted that the circumstance that had caused the above-cited injuries was a jeep that had gone over a cliff after its brakes had failed;
(ii) Private treatment records, dated in April and August 1986, reflecting that the Veteran experienced back pain after he ran to greet someone and lifted a heavy object, respectively. In April 1986, he denied having sustained any previous serious injury to his back;
(iii) An April 2008 VA examiner's opinion that the Veteran's current degenerative disc disease of the low back was less likely related to the in-service treatment he had received for abrasions of the right and left legs and bruised rectum after he was involved in a jeep accident. The VA examiner reasoned that there was no evidence of any continuing problem or chronicity of any back problem after the Veteran's discharge from military service until August 1986, when he developed a back problem after he had lifted a heavy object and felt sudden discomfort and pain in his low back that radiated into his left lower extremity. The VA examiner attributed the Veteran's current degenerative disease of the lumbosacral spine to age-related degenerative changes or the wear-and-tear process; and,
(iv) An October 2008 VA treatment notes reflecting that the Veteran reported having experienced a progressive worsening of his back pain ever since he was involved in an in-service jeep accident. The examining healthcare provider entered an assessment of "back pain--which could as likely as not be related to "jeep going over an cliff--mentioned above;" and,
(b) If an opinion cannot be provided without resort to speculation, the respective examiner must explain why this is the case and what, if any, additional evidence would be necessary before an opinion could be rendered.
4. Following completion of the development requested in paragraph 1, above, schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected bilateral hearing loss disability. The claims file should be made available to and reviewed by the examiner. All indicated tests must be performed. The examiner is specifically requested to perform speech recognition testing using the Maryland CNC Test. All findings, including auditory thresholds for the frequencies 1000, 2000, 3000, and 4000 Hertz, and speech recognition scores, must be reported.
5. Readjudicate the service connection and increased evaluation claims on appeal. Readjudication of the increased evaluation claim should include consideration of staged ratings, pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007).
If any benefit sought remains denied, issue a supplemental statement of the case before returning the claim(s) to the Board, if otherwise in order.
The Veteran the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs